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3232What Is an Abstract of Judgment in Texas? – How to File, Forms & Morehttps://kretzerfirm.com/what-is-abstract-of-judgment-texas-how-to-file-how-long/
https://kretzerfirm.com/what-is-abstract-of-judgment-texas-how-to-file-how-long/#respondTue, 21 May 2019 12:00:02 +0000https://kretzerfirm.com/?p=3405The modern court system in the State of Texas provides many protections for judgment debtors and navigating the post-judgment collection process can be overwhelming whether the judgment is from state court, the federal district court, or out-of-state and you still need to domesticate your judgment in Texas. One of the best tools in your toolbox […]

]]>The modern court system in the State of Texas provides many protections for judgment debtors and navigating the post-judgment collection process can be overwhelming whether the judgment is from state court, the federal district court, or out-of-state and you still need to domesticate your judgment in Texas.

One of the best tools in your toolbox for making sure you receive the money that is yours by right is by filing an abstract of judgment. Once you have received your judgment, you should do this right away.

What Is an Abstract of Judgment in Texas?

Think of an abstract of judgment as a way of recording your story, permanently, for everyone to see. This includes the debtor and people who do business with the debtor, whose property, due to the abstract of judgment, is no longer free and clear.

An abstract of judgment is a written summary which states how much money a losing defendant owes to the winning plaintiff in a lawsuit. This person who won the lawsuit and is owed the debt is the “judgment creditor.” The person who lost the lawsuit and owes the debt is the “judgment debtor.”

In addition to the amount of the judgment award, the abstract of judgment will include the rate of interest, court costs, and any specific orders that the judgment debtor must obey. Per Texas Property Code §52.003, it must also include the birthdate of the defendant/judgment debtor, the debtor’s driver’s license number and social security number, the debtor’s address, and the creditor’s address.

Abstract of judgment forms are available in each of Texas’ counties for you and your attorney to fill out. For example, Harris County maintains a form for inputting all required information, called the Request for Abstract of Judgement Form, which can be accessed here.

The purpose of the abstract of judgment is to create a public record that automatically creates a lien or claim on any real estate property owned or later acquired by the judgment debtor in the county where the abstract is recorded. The only exception is where the property is “exempt’ – or out of reach – for a specific reason, such as being the debtor’s residence.

How Long Does an Abstract of Judgment Last in Texas?

The abstract creates a lien on the judgement debtor’s nonexempt real property in the county where the abstract has been recorded, pursuant to Texas Property Code §52.001. The lien continues for ten (10) years from the date of recording and indexing with the county, except in cases where the judgment becomes dormant during that period. See Texas Property Code §52.006.

A judgment becomes dormant where no writ of execution is filed attempting to collect on the judgment. If no writ of execution has been entered during the 10-year life of the abstract, your attorney can revive the judgment for an additional two years and start the process anew. See Texas Civil Practice and Remedies Code §34.001; §34.006.

How to File an Abstract of Judgment in Texas

Most Texas counties have a readily-available form to fill out with the county clerk in order to file your abstract of judgment. Each county has its own fee, though the fees are relatively small. Once you file your abstract, the county clerk is required by law to immediately record in that county’s real property records.

The judgment lien that is generated by the abstract creates practical difficulties for the debtor’s real property whether it is owned in that county or later acquired in that county. The filing of the abstract ensures that even if the property is currently exempted, such as the debtor’s primary residence or “homestead,” the lien will attach the moment the debtor stops living there. Also, if the debtor dies, the heirs who inherit the debtor’s property will be responsible for the lien. See Texas Probate Code §37.

Release of Abstract of Judgment

A release of an abstract of judgment can occur where the debtor files an Affidavit of Release of a Judgment Lien (sworn statement) showing that the real property in question is the debtor’s homestead and meets certain legally-established criteria set forth in Texas Property Code §41.002, which can be up to 10 acres for an urban home, 100 acres for a single adult rural home and 200 acres for family rural home. These forms for the release of an abstract of judgment in Texas are also available online from most counties.

Your attorney can contest the release of abstract of judgment Texas form if it is untrue or another reason exists why the property should not be released.

Contact the Law Office of Seth Kretzer for Post-Judgment Collection Help

If you or your client has won a judgment, you will need a lawyer with specific experience enforcing judgment liens in Texas and who has the right knowledge and resources to help protect your rights. Call Seth Kretzer at 713-775-3050 or contact us online today to discuss your case.

Seth is on your side and knows how to collect on a judgment in Texas. Additionally, he has experience with countless creditors facing the challenges you are now confronting filing your abstract of judgment and seeing your judgment enforced. He truly understands your situation and will do everything in his power to help you!

]]>https://kretzerfirm.com/what-is-abstract-of-judgment-texas-how-to-file-how-long/feed/0Post-judgment Discovery in Texas | Interrogatories and Morehttps://kretzerfirm.com/what-is-post-judgment-discovery-in-texas-interrogatories/
https://kretzerfirm.com/what-is-post-judgment-discovery-in-texas-interrogatories/#respondTue, 07 May 2019 12:00:53 +0000https://kretzerfirm.com/?p=3402After a monetary judgment is executed by a Texas Court, it’s up to a successful Plaintiff, who now becomes the judgment creditor, to enforce it against the unsuccessful Defendant, now the judgment debtor. The case may be over, but certain techniques used by lawyers, specifically discovery, are still available to help collect on a judgment […]

]]>After a monetary judgment is executed by a Texas Court, it’s up to a successful Plaintiff, who now becomes the judgment creditor, to enforce it against the unsuccessful Defendant, now the judgment debtor. The case may be over, but certain techniques used by lawyers, specifically discovery, are still available to help collect on a judgment in Texas.

What Is Post-judgment Discovery in Texas?

In Texas, post-judgment discovery is like discovery during an active litigation. You or your attorney have at your fingertips the full scope of discovery available to you under the same docket number and caption used during the litigation.

Post-judgment discovery may include common tools known in civil or criminal cases such as depositions, interrogatories, requests for admissions, and demands for the production of documents. These can be used on the debtor or on third parties with knowledge of the debtor’s assets, like accountants, bookkeepers, banks, title companies, insurance companies, law firms, partnerships, brokerage firms, and trustees. The purpose of these tools has a razor-sharp focus – to discover what assets the debtor has that can be used to pay the judgment against him or her.

How Does Post-judgment Discovery Work?

Post-judgment discovery works the same way as regular discovery and is governed similarly by court rules that dictate what information or documents the parties may exchange, timeframes for exchanging it, and penalties for defying discovery requests, which could even include the debtor going to jail.

Post-judgment Depositions

One discovery tool is post-judgment depositions. Once the Court signs the judgment, the creditor can notify the judgment debtor of its intention to take the debtor’s post-judgment deposition. If the judgment debtor is a corporation, the person deposed is usually the president or a financial officer.

The purpose of the deposition is to find out what assets are available to satisfy the Judgment, through questions about current employment, future employment prospects, questions about future or contingent interests in property, and questions about plans for a business.

In a post-judgment context, the deposition is taken pursuant to the same rules and procedures as in ordinary litigation. A deposition notice is served, the deposition is scheduled at a pre-agreed location, and a court reporter records the deposition. One major distinction is that there is no time limit set on a post-judgment deposition. See TEX. R. CIV. P. 621(a).

Creditors can also depose third parties, for example a non-debtor spouse, who have knowledge about or are in possession or control of the debtor’s property.

Post Judgement Interrogatories

A creditor can also send post-judgment interrogatories to a judgment debtor. In the post-judgment context, debtor interrogatories are written questions designed to discover certain financial information about the debtor, such as bank account and other financial information. See TEX. R. CIV. P. 621a. The debtor must answer truthfully to the best of his or her knowledge and sign the completed answers to the interrogatories.

While during pre-trial discovery a party may only send twenty-five (25) interrogatories, in the post-judgment context there is no limit to the number of interrogatories that may be sent. A judgment debtor has thirty (30) days to return written answers to the interrogatories.

Post-judgment interrogatories should, at a minimum, request the name and address of the debtor’s spouse and employer; the debtor’s income and expenses; the spouse’s income and expenses; a description and location of debtor and spouse’s real estate and personal property; the name and address of all other existing creditors and amounts owed to each.

Failure to respond to post-judgment interrogatories can lead to a motion to compel and a charge of contempt of court.

Post-judgment Requests for Admissions

A creditor can send post-judgment requests for admissions to a judgment debtor. Requests for admissions are written statements generally requiring an answer, under oath, of “yes” or “no.” The creditor might ask, for example, “do you own a vacation home near the Galveston Bay?”

In situations where the creditor already knows or has reason to believe that certain assets exist (think for instance of how many people post pictures of their property on Facebook and other social media), admissions offer a chance for the creditor to confirm the debtor’s assets.

Answers to requests for admissions must be provided to creditors within thirty (30) days of the request. Failure to respond to post-judgment requests for admissions can lead to a motion to compel and a charge of contempt of court.

Post-judgment Request for Production of Documents

In addition, a creditor can send post-judgment requests for production of documents. These requests require the debtor to produce various categories of documents that will reflect what assets the debtor owns. See TEX. R. CIV. P. 196.1.

A request must, “specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category.” Upon ten (10) days’ notice to the judgment debtor, the creditor can serve a subpoena and written request compelling production of documents from third-parties.

Responsive documents must be provided by the debtor within thirty (30) days of the request. Failure to respond to post-judgment document demands can lead to a motion to compel and a charge of contempt of court.

Motions to Compel and Motions for Contempt

If a debtor refuses to appear at his or her post-judgment deposition, to answer the requested interrogatories, or to produce the requested documents, the creditor can file a motion with the Court seeking to compel the debtor’s compliance with the discovery request. See TEX. R. CIV. P. 215.

Following a hearing, the creditor will receive a Court order that “orders” the judgment debtor to comply with the discovery request. If the judgment debtor continues to refuse to comply, the judgment creditor can file a motion seeking to have the judgment debtor held in “contempt of court” for failing to obey the court’s previous order. This can result in hefty fines and jail time. See O’Connor v. Sam Houston Medical Hospital, 802 S.W.2d 247, 248 (Tex. App.–Houston [1st Dist.] 1990), rev’d on other grounds, 807 S.W.2d 574 (Tex. 1991) (assessing fines of up to $1,000 per day on a debtor for failing to provide responsive discovery).

Petitioning for a Turnover Order

When petitioning for a “turnover order,” your lawyer will seek debt collection to be overseen by the court, whereby a court-appointed receiver uses his or her authority to find and turnover assets directly to the you that are otherwise unattainable through normal collection means. In this case, all discovery tools would be at the disposal of the court and its receiver.

Contact Seth Kretzer for Help with Post-Judgment Discovery in Texas

If you or your client has won a judgment, you will need a lawyer with specific experience enforcing collections using effective post-judgment discovery techniques. Call the Law Offices of Seth Kretzer at 713-775-3050 or contact us online today to discuss your case.

]]>https://kretzerfirm.com/what-is-post-judgment-discovery-in-texas-interrogatories/feed/0Petition to Enforce Foreign Judgment in TX – Domestication of Judgmenthttps://kretzerfirm.com/domesticate-judgment-can-judgment-be-enforced-in-another-state/
https://kretzerfirm.com/domesticate-judgment-can-judgment-be-enforced-in-another-state/#respondTue, 23 Apr 2019 12:00:27 +0000https://kretzerfirm.com/?p=3361If you are awarded a judgment from another state (a foreign judgment), then a “judgment domestication” must be initiated with your county clerk’s office. This article covers the details and stipulations surrounding the enforcement of foreign judgments. Can a Judgment Be Enforced in Another State? The United States Constitution’s Full Faith and Credit Clause, Article […]

]]>If you are awarded a judgment from another state (a foreign judgment), then a “judgment domestication” must be initiated with your county clerk’s office. This article covers the details and stipulations surrounding the enforcement of foreign judgments.

The State of Texas has a process (available in Chapter 35 Texas Civil Practice and Remedies Code – Enforcement of Judgments of Other States) for recognizing and enforcing judgments, decrees, and orders from the other states and federal courts in the United States. In fact, a foreign judgment can be authenticated “in accordance with an act of congress or a statute of this state,” which then “may be filed in the office of the clerk of any court of competent jurisdiction of this state.”

This process is known as domestication of a foreign judgment and is governed by the Texas Uniform Enforcement of Foreign Judgments Act. The Act applies to “foreign judgments,” which means “a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state.”

Uniform Enforcement of Foreign Judgments Act

The Texas Uniform Enforcement of Foreign Judgments Act states that judgments from other territories, states and federal courts in the United States must be recognized by the State of Texas. The final judgment from another state or Federal Court shall be given full faith and credit in Texas State Courts and the effect of proper domestication of the foreign state judgment is to instantly create a Texas judgment. Such a judgment has the same effect and is subject to the same procedures as a judgment rendered in the state of Texas.

What About the Enforcement of Foreign Judgments in US?

The Texas Uniform Foreign Country Money-Judgment Recognition Act provides for the recognition of judgments from other countries. The judgment must be final, conclusive and enforceable in the country in which it was rendered regardless of any appeals in the works. Upon completion of the statutory requirements for filing such a judgment, the foreign country judgment is enforceable as if it were a sister state judgment entitled to full faith and credit.

Like the foreign state judgment, the foreign country judgment may be domesticated in Texas by filing a properly authenticated copy of the judgment along with an affidavit containing the names and addresses of the judgment creditor and judgment debtor as well as the judgment creditor’s attorney in the State of Texas.

The filing must be made in the county of residence of the party against whom recognition is sought or in any other Texas county of competent jurisdiction as allowed by Texas venue laws. Either the clerk of that court or the judgment creditor must then send notice of the filing of the foreign judgment to the judgment debtor. Barring nonrecognition of the foreign country judgment under the Uniform Foreign Country Money-Judgment Recognition Act, the foreign judgment is treated as a Texas judgment and the collection process may begin.

How to Domesticate a Judgment

To domesticate a judgment, a judgment creditor must obtain a properly authenticated copy of the foreign judgment (some jurisdictions refer to this as triple authenticated or an exemplified copy). Once the creditor has in his or her possession an authenticated copy of the foreign judgment, the authenticated copy of the judgment can be filed with the Texas court, along with an affidavit of the creditor’s and the debtor’s last known addresses.

Once the judgment has been properly filed with the Texas court, the judgment creditor is free to pursue post-judgment collection activities including abstracting the judgment in the real property records and sending post-judgment written discovery demands. Thirty days after filing the foreign judgment, a writ of execution may be also obtained.

Petition to Enforce Foreign Judgment Texas

The petition to enforce a foreign judgment in Texas begins with filing an authenticated copy of the judgement with the Texas courts, seeking domestication of the judgment.

Additional Steps for Domestication

The Texas Uniform Enforcement of Foreign Judgments Act also allows certain optional procedures for enforcing a foreign judgment, for instance, a “judgment creditor retains the right to bring an action to enforce a judgment instead of proceeding under this chapter.”

An optional procedure for enforcing a foreign judgment thus involves filing a new lawsuit. The process involves filing a new suit and then immediately seeking summary judgment.

Contact the Law Office of Seth Kretzer for Help with Domesticating a Judgment in Texas

Learning how to domesticate a judgment in Texas can seem chaotic without a knowledgeable attorney. Learning how to collect on a judgment in Texas can be easy. Seth Kretzer can help you domesticate and enforce a foreign judgment.

]]>https://kretzerfirm.com/domesticate-judgment-can-judgment-be-enforced-in-another-state/feed/0How to Collect on a Judgement in Texashttps://kretzerfirm.com/how-to-collect-on-a-judgement-in-texas/
https://kretzerfirm.com/how-to-collect-on-a-judgement-in-texas/#respondTue, 09 Apr 2019 12:00:06 +0000https://kretzerfirm.com/?p=3358The modern court system in the State of Texas provides many protections for judgment debtors. Navigating the post-judgment collection process can be overwhelming whether the judgment is from state court, federal district court, or out-of-state. After countless demand letters go ignored, creditors often face even more litigation in hopes of getting paid. In this way, […]

]]>The modern court system in the State of Texas provides many protections for judgment debtors. Navigating the post-judgment collection process can be overwhelming whether the judgment is from state court, federal district court, or out-of-state.

After countless demand letters go ignored, creditors often face even more litigation in hopes of getting paid. In this way, a judgment creditor’s celebration after obtaining a judgment is often short-lived, as they soon realize the judgment is only a piece of paper and there is more work to be done. Moreover, most of the property that debtors have – their home, their car, their furnishings – qualifies as “exempt” from enforcement of a judgment under the law.

So, how do you collect on a civil judgment?

How to Enforce a Judgment

While the situation described above may seem daunting, judgment creditors in Texas should remember that they do have numerous options when it comes to how a judgment can be enforced.

There are several ways to collect on a judgment in Texas. First, if you have a Texas judgment, you can begin the collections process immediately by filing an “abstract of judgment” in the county clerk’s office where you believe the judgment debtor owns “non-exempt” real property.

Exempt versus Non-Exempt Property

What is non-exempt property? Unfortunately, and especially when dealing with individual judgment debtors instead of businesses debtors, non-exempt property is a small percentage of what most people own. It’s the property that is not “exempt” as a matter of law.

A long list of exempt property in Texas includes:

the “homestead,” which is a house and up to one acre of land in an urban area, or a house and up to two acres of land in a rural area

current wages for personal services

personal property that is not more than $60,000 (if married) or $30,000 (if single)

up to a certain dollar amount of items including

home furnishings

provisions for consumption

clothing

jewelry

farming and ranching tools and implements

vehicles for each person in the household who holds a license to drive

To find out whether a judgment debtor has any non-exempt property, a creditor can use the discovery processes of civil litigation, such as interrogatories asking questions about a debtor’s assets. Once you’ve filed your interrogatories with the court, you can have a sheriff’s deputy deliver them to the person you sued, or you can mail them yourself using certified mail with return receipt requested.

Tools such as interrogatories can be used to obtain information directly from the judgment debtor about his or her non-exempt assets, and generally, the courts will stay involved and provide assistance. In fact, failure to timely respond to post-judgment interrogatories will permit the creditor to file a motion to compel, and failure to comply with an order to compel may lead the court to hold the debtor in contempt.

Filing the Abstract of Judgment

Once you have identified non-exempt property owned by the judgment debtor, you are in a good position to file your abstract of judgment with the county clerk. Once the abstract of judgment is filed and properly recorded, then a “judgment lien” is created which will automatically attach to any non-exempt real property owned or thereafter acquired by the debtor and located in that county.

There is no limit to the number of counties a judgement creditor can file an abstract of judgment in. In fact, a creditor can file an abstract in every one of Texas’ 254 counties (though each will have additional fees). The practical effect of this is to warn all potential buyers of a piece of real property that there is an outstanding balance due, and that the property is not free and clear. This will negatively affect any prospective seller’s ability to sell property and encourages sellers to pay their debts off first.

A judgment can be abstracted for up to ten years after it is entered. From the date the judgment is abstracted, the judgment creditor has another ten years to abstract the judgment and collect on it. At the end of those ten years, the creditor can abstract the judgment yet again.

Foreign Judgments and Domestication

If you have a judgment from another state, sometimes referred to as a foreign judgment, then a judgment domestication must be initiated with the county clerk’s office. Once domesticated in Texas, the judgment creditor can begin employing any and all methods of collection available for a Texas judgment, including but not limited to, abstracting the judgment as described above.

Obtaining a Writ of Execution

Another option of how to enforce a judgment is to obtain a “writ of execution.” Thirty days after judgment, you may obtain a such a writ to attempt to seize the debtor’s non-exempt property to satisfy your judgment. The court-issued writ of execution allows law enforcement in Texas to seize and then sell real and personal property belonging to the creditor in order to help satisfy the judgment.

Obtaining a Writ of Garnishment

In some situations, judgment creditors may choose to pursue what is known as a “writ of garnishment.” A writ of garnishment is particularly useful in situations where a debtor does not have enough real or personal property in the state to satisfy the judgment. Accounts subject to a writ of garnishment can include not only bank accounts, but also some investment accounts.

Petitioning for a Turnover Order

The rarest of collection methods is to ask a court to appoint a receiver under a “turnover order.” This receiver will use its court-appointed power to find and turnover assets to the creditor where such assets are unattainable through normal collection means. This is the most powerful option, but it is not commonly granted by the courts due to its power.

Contact the Law Office of Seth Kretzer for Help with Collecting on a Judgment in Texas

Learning how to collect on a judgment in Texas can be overwhelming without the proper attorney. Seth Kretzer can help to collect your rightful due.

]]>https://kretzerfirm.com/how-to-collect-on-a-judgement-in-texas/feed/0How Long Does a Criminal Record Last & Does It Ever Go Away?https://kretzerfirm.com/how-long-does-a-criminal-record-last-how-far-back-background-checks/
https://kretzerfirm.com/how-long-does-a-criminal-record-last-how-far-back-background-checks/#respondTue, 26 Mar 2019 12:00:20 +0000https://kretzerfirm.com/?p=3340What Is a Criminal Record? A criminal record is made up of documents or a compilation or summary of documents maintained by state or federal governments that preserves, in chronological order, your history of violations, arrests, and convictions under criminal law. On the federal level, the FBI’s National Crime Information Center (NCIC) maintains a nationwide […]

A criminal record is made up of documents or a compilation or summary of documents maintained by state or federal governments that preserves, in chronological order, your history of violations, arrests, and convictions under criminal law.

On the federal level, the FBI’s National Crime Information Center (NCIC) maintains a nationwide database of criminal records. Information stored by the NCIC involves all federal criminal matters as well as information that is voluntarily supplied by states.

Criminal records are often accessed by credit reporting agencies at the time of application for credit cards or loans, by potential employers, and for screenings of tenants by landlords. Law enforcement agencies and courts also have ready access to these records.

How Long Does a Criminal Record Last?

All criminal information stays on criminal records indefinitely and is available to anyone with access to the records. In some states, “expungement” of criminal records may be possible with the records either being sealed from public view or destroyed by erasing the information from the state database and destroying all hard copies of the records. There is no federal equivalent of record expungement, and the only recourse for an individual to obtain relief from these records is by obtaining a presidential pardon.

In Texas, an individual who has successfully completed deferred adjudication community supervision can petition the court that placed the individual on probation for an order of nondisclosure of the related criminal records under Texas Government Code §411.071.

An order of nondisclosure prohibits criminal justice agencies from disclosing to the public criminal history record information related to an offense. Nondisclosure is different from an expungement in the sense that the record does not “go away,” it is merely held back from access by the public.

How Long Do Arrests Stay on Your Record?

Arrests are part of a criminal record and stay on the record until the record is expunged. As an alternative option, a defendant under certain circumstances can petition for an order of nondisclosure, which does not remove an arrest from the record completely, allowing law enforcement agencies to still access it, but does prevent public disclosure of the record, such as to a prospective employer. A qualified lawyer can assist you with a petition for nondisclosure.

How Long Does a Conviction Stay on Your Criminal Record?

Convictions are part of a criminal record and stay on the record until the record is expunged. As an alternative, under certain circumstances, you, the defendant, can petition for an order of nondisclosure. Again, this nondisclosure does not remove an arrest from the record completely (law enforcement agencies can still access it), but it does prevent public disclosure of the record, such as to a prospective employer or landlord. A lawyer can assist you with a petition for nondisclosure.

How Long Does a Minor Criminal Record Last?

A juvenile criminal record is Texas is not confidential. And the record is not automatically sealed once you turn 18. If a record is not sealed, it can be read by law enforcement agencies, probation officers, juvenile justice officers, prospective employers, educational institutions, and a few other parties.

In the case of juvenile criminal records, Texas law lets you seal some convictions after a waiting period under Family Code §58.253. A new process of “automatic sealing” eliminates the requirements to file an application or petition to seal records and mandates the juvenile court to order sealing of records if the juvenile meets statutory criteria. Another law lets you expunge some criminal records (i.e., minor alcohol violations) handled in municipal or justice courts.

How Long Does a Misdemeanor Stay on Your Record?

A misdemeanor, while defined as a minor wrongdoing or crime, is still considered a crime. As such, it is still a part of your criminal record just like a felony conviction would be, and still stays on your record, indefinitely, unless you seek an expungement.

This means a misdemeanor stays on your record for life unless you successfully petition for expungement. There is no preset “expiration date” for misdemeanor crimes. Even though misdemeanor offenses are less serious than felonies, they are still serious breaches in the eyes of the law.

Legally speaking, a misdemeanor is on your record for life. However, in some cases, background checks will only go back a certain number of years. For instance, in Texas, there is a “seven-year rule” in place discussed more below.

Specific Charges

If you were arrested for a misdemeanor or felony, your criminal record may qualify for expungement under the following conditions:

you were acquitted of the crime for which you were charged

you were convicted but subsequently found to be innocent

you were convicted but subsequently pardoned by the Governor or President

you were formally charged by indictment or information and the case against you was later dismissed, and the statute of limitations has expired, or

you were arrested but not formally charged and you satisfy a proscribed waiting period

Texas requires that you wait a specific period of time before filing for expunction if you were arrested, but not charged with a crime. This is to allow the prosecution time to muster a case against you if they choose/can do so. These waiting periods are 180 days from the date of arrest for a Class C Misdemeanor, one year from the date of arrest for a Class A or Class B Misdemeanor, and three years from the date of arrest for a felony.

Additionally, record sealing in Texas is available to those who have successfully completed all terms and conditions of deferred adjudication probation. For a misdemeanor in Texas, you can seal your record immediately after completing your deferred adjudication. For a felony, you must wait 5 years to seal your record.

A handful of charges are never eligible for a non-disclosure, as follows:

Aggravated and Regular Sexual Assault

Indecency with a Child

Prohibited Sexual Conduct

Aggravated Kidnapping

Burglary of Habitation with intent to commit the above-listed offenses

Compelling Prostitution

Sexual Performance of a Child

Child Pornography charges

Unlawful Restraint, Kidnapping, or Aggravated Kidnapping of a person younger than 17 years old

Attempt, conspiracy, or solicitation to commit any of the above-listed offenses

Capital Murder or Murder

Injury to a Child, Elderly or Disabled person

Abandoning or Endangering a Child

Violation of a Protective Order

Stalking

Family Violence

How Long Does a DWI Stay on Your Record?

A DWI is sometimes mistaken for a driving violation since it involves the use of a car. In fact, a DWI is a criminal violation, and stays on your record for the remainder of your life, subject to expungement and nondisclosure as explained in this article.

How Long Does a Bad Check stay on Your Record?

If you were convicted for passing a bad check in Texas, the crime stays on your record for the remainder of your life, subject to expungement and nondisclosure as explained in this article.

How Far Back to Background Checks Go?

The law for how far back a background check can look is different in each state. In Texas, for example, the basic rule which answers the question “how far does a background check go” is that an employer working with a credit reporting agency can only look back seven years on a criminal background check.

An exception is when the job in question is for more than $75,000 per year. In that case, the employer can look back as far as your eighteenth birthday. For a job with an insurance agency, the employer may perform a background check also to your eighteenth birthday. For jobs that include residential delivery or in-home services, like being a landscaper, electrician, or UPS driver, the employer is required to conduct a background check that includes 20 years back for felonies and 10 for misdemeanors.

How Do Misdemeanors Come Up on Criminal Background Checks?

A misdemeanor while defined as a minor wrongdoing or crime, is still considered a crime. As such, it is still a part of your criminal record just like a felony conviction would be, and still stays on your record, indefinitely, unless you seek an expungement. The misdemeanor is found as part of the criminal background check. It is noted as a misdemeanor rather than a felony on the check.

How Long Does a Felony Stay on a Background Check?

Felonies and misdemeanors both are part of a criminal record and stay on the record until the record is expunged. They stay on a criminal record indefinitely unless expunged, and they can be found through a background check subject to the statutory limitations on how far back a checker can look.

]]>https://kretzerfirm.com/how-long-does-a-criminal-record-last-how-far-back-background-checks/feed/0Can You Appeal a Guilty Plea? – Motion to Withdraw a Plea After Sentencinghttps://kretzerfirm.com/can-you-appeal-a-guilty-plea-can-judge-overrule-plea-bargain/
https://kretzerfirm.com/can-you-appeal-a-guilty-plea-can-judge-overrule-plea-bargain/#respondTue, 12 Mar 2019 12:00:23 +0000https://kretzerfirm.com/?p=3338Plea bargaining has grown in popularity as criminal courts have become increasingly crowded, and constitutional concerns require cases to be moved speedily through the system. They are desirable because they are the result of a negotiation where prosecution and defense both maintain some control over the outcome, and hopefully, the attorneys develop a plea bargain […]

]]>Plea bargaining has grown in popularity as criminal courts have become increasingly crowded, and constitutional concerns require cases to be moved speedily through the system. They are desirable because they are the result of a negotiation where prosecution and defense both maintain some control over the outcome, and hopefully, the attorneys develop a plea bargain that both they and you can live with.

What Is a Plea Bargain?

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or “no contest” (nolo contendere) in exchange for an agreement by the prosecutor to drop one or multiple charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence acceptable to the defense.

One type of plea called an “open plea” refers to the defendant pleading guilty without any promise from the prosecution as to what sentence it will recommend and relying completely on the mercy of the court for the ultimate sentence.

Can You Appeal a Plea Bargain?

In exceptional circumstances, a plea bargain that was not knowingly or voluntarily accepted may be appealable, usually before the same judge who accepted it at the trial court level, but also at higher levels including the appellate court, Texas Supreme Court, and federal courts.

You arrive at the courthouse when the doors open and meet your attorney for the first time. You spoke a few days earlier over the phone, explained your case to the attorney, sent him documents which show you were innocent, and he assured you that it was a minor matter that he could make “go away.” The judge begins calling cases, and you wait in the courtroom for several hours. This is not quality time spent bonding with your attorney; in fact, while you wait, your lawyer is in and out of the courtroom taking phone calls, talking about weekend plans with police officers, flirting with a court reporter, and finally, meeting with the prosecutor.

Your attorney speaks to you just moments before your case is called and tells you “You should take the deal I got you because I’m not spending any more time talking to the prosecutor about it today.” He tells you it’s a good deal, and that’s all he tells you. When the judge reviews your case, you plead guilty, taking the plea without really knowing what is happening. You end up with significant jail time. Afterward, you learn your attorney never even read the e-mail with the evidence that you sent over, proving your innocence. In an extreme case such as this, you may have the right to appeal your own plea bargain.

Can You Appeal a Guilty Plea?

If your lawyer doesn’t properly advise you on your plea bargain, you may have a viable claim for ineffective assistance of counsel, one of several grounds to appeal your guilty plea.

Other grounds for appealing a guilty plea could be if you did not understand the consequences of the plea, such as the amount of jail time, probation, restitution, parole, or required registration on a sex offender registry. If you are an immigrant, not being informed of deportation consequences at the time of entering a guilty plea is grounds for appealing the plea.

Still more grounds include being induced to enter the plea, having impaired judgment or lacking mental capacity at the time of entering the plea, or technical matters, like the court failing to establish the factual basis for your crime or the court clerk making a clerical mistake, such as entering too long a sentence or failing to account for jail time credits.

Is Pleading Guilty the Same as a Conviction?

Pleading guilty and being convicted are close, but not quite the same. They are different stages in the process. The guilty plea is one stage; the sentencing hearing and sentencing is the final stage and when the actual “conviction” is entered.

Occasionally, a judge will sentence a person on the same day as a plea. However, with more serious matters the judge usually sets sentencing for a later date to leave time for a pre-sentence interview and the drafting of a pre-sentence report prior to sentencing. In these cases, there is usually time to withdraw a guilty plea before the final conviction, discussed more below.

Can a Judge Overrule a Plea Agreement?

Plea deals aren’t always honored by the judge, who has the ultimate authority to accept or reject a plea deal. The judge might say no to a plea deal for several different reasons, including pressure from victims in a case and pressure from the general public, especially if the case is a high profile one with much media attention. In some states, like Texas, the general public also includes voters who elect judges to the bench.

Due to the possibility that a judge could reject a plea agreement and impose a harsher sentence, it’s sometimes wise for defense attorneys to apprise the judge of a potential plea. While the judge cannot set the terms of the plea bargain, he or she can indicate a leaning towards certain provisions and whether he or she might accept or reject a certain deal.

Withdrawing a Guilty Plea after Sentencing – Is This Possible?

After sentencing, withdrawing a plea is an uphill battle, but with a good criminal appeals attorney in Houston, the climb isn’t impossible. The trial judge will typically set aside a conviction and allow plea withdrawal only if it’s necessary to avoid an obvious injustice. However, there are various situations in which trial or appellate judges are generally supposed to allow defendants to withdraw their pleas.

These include, but aren’t limited to, the following:

The defendant didn’t “intelligently” plead guilty, whether because of psychological challenges or the influence of drugs or alcohol.

Defense counsel failed to advise the defendant of crucial ramifications of the plea deal, such as mandatory deportation of an immigrant.

The lawyer entered a guilty plea on the client’s behalf without the client’s consent.

The defendant was denied a constitutional right, such as the right to counsel.

The judge participated too much in plea negotiations.

The defendant entered the plea because of off-the-record promises or threats.

New evidence of innocence surfaces (such as DNA analysis).

Motion to Withdraw a Plea after Sentencing

A motion to withdraw your guilty plea means you are asking the judge to let you take your plea back. It must be in writing and must explain why the judge should allow you to change your mind. Typically, a motion to withdraw a plea after sentencing will only be considered on a showing of “good cause.”

Good cause can include:

Whether there’s any factual basis for the plea.

Whether the defendant understood the charges against them.

Whether the defendant was informed of their Constitutional rights (right to trial, right to counsel).

If you believe you meet the above test, then it will be important to file your motion to vacate with the clerk of the court immediately. These time limits tend to be very short depending on what court you are in. If you change your mind later, you can always withdraw the motion.

]]>https://kretzerfirm.com/can-you-appeal-a-guilty-plea-can-judge-overrule-plea-bargain/feed/0Can You Bail Out on Federal Charges? – Bail, Federal Hold, and Detention Hearingshttps://kretzerfirm.com/can-you-bail-out-on-federal-charges-bail-federal-hold-and-detention-hearings/
https://kretzerfirm.com/can-you-bail-out-on-federal-charges-bail-federal-hold-and-detention-hearings/#respondTue, 19 Feb 2019 13:00:49 +0000https://kretzerfirm.com/?p=3324What Is a Federal Hold on an Inmate? When a suspect is arrested and charged with a crime under federal law, they will be detained until a hearing can be held in which the appropriate judge makes a determination as to whether or not they should remain detained. Under the federal Bail Reform Act of […]

When a suspect is arrested and charged with a crime under federal law, they will be detained until a hearing can be held in which the appropriate judge makes a determination as to whether or not they should remain detained.

Under the federal Bail Reform Act of 1984, the judge must decide to either release the defendant on the his or her own recognizance (“R.O.R.”) or execution of a bond, release the defendant with conditions or a combination of conditions, or continue detention.

Can You Bail Out on Federal Charges?

Unlike the state courts, the federal courts do not consider the money possessed or able to be raised by a criminal defendant as a reason to detain or not detain the defendant. Instead, federal judges will focus on the stability, reliability, risk of flight and danger to the community of a defendant, along with other factors laid out by Congress in the Bail Reform Act.

A defendant should not anticipate being able to “pay his way” out of detention or bail on federal charges, but with the help of an attorney, a defendant can put together a compelling argument for being a good candidate for release.

The Federal Criminal Pretrial Process

After a defendant is arrested, he or she is brought before the federal Magistrate Judge for an initial appearance and Detention Hearing within three days of the arrest under Federal Rules of Criminal Procedure 5 and 5.1.

At the Detention Hearing, the defendant will learn of the charges against them, whether probable cause exists for the charges and the detention, and whether any set of conditions has been determined by the judge to be adequate to reasonably assure the appearance by the defendant at trial.

What is a Pretrial Interview?

A Pretrial Interview is conducted after arrest but before the Detention Hearing by a Pretrial Services Officer. The officer will interview the arrestee for background information, such as biographical information related to the arrestee’s family, employment, education and financial status.

The Fifth Amendment of the Constitution protects the arrestee from having to answer any questions about the alleged crime, and the officer is not supposed to ask. After the interview, the officer compiles a report which summarizes all available information, then meets with the judge to share the report, and makes a recommendation as to detention versus release. Generally, a judge will give strong consideration to the officer’s report.

What Is a Detention Hearing?

At the Detention Hearing in the federal court, the Magistrate Judge or District Judge will consider the findings of the Pretrial Services Officer and examine on the record whether the arrestee is a flight risk or a danger to the community, along with other factors set forth in the Bail Reform Act.

Statute 18 U.S.C. §3142

This section of the Bail Reform Act is guided by the principle of the Eighth Amendment that excessive bail should not be required, excessive fines should not be imposed, and unusual punishments should not be inflicted on a criminal defendant.

The default position of the Bail Reform Act is that the release of a person on his or her personal recognizance or an unsecured appearance bond is appropriate unless such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

Release on conditions is the backup to the default position. Release of a person on conditions should be subject to “the least restrictive condition, or combination of conditions…that will reasonably assure the appearance of the person as required and the safety of any other person and the community…” Pretrial Detention is appropriate only if “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.

Under §3142 (e)(3), the Bail Reform Act lists those offenses which carry a “presumption of detention,” including drug cases with a maximum penalty of ten (10) or more years of incarceration, use of a firearm in connection with drug charges, acts of terrorism, human trafficking, and most offenses against minors.

The Bail Reform Act also sets forth the factors to be considered by the judge on the question of release of detention, including the nature and circumstances of the offense, the weight of the evidence against the person, the characteristics of the person including physical and mental condition, family ties, employment, financial resources, residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, record concerning appearance at court proceedings, whether the person was already on parole when the offense was committed, and the danger the person may pose to others in the community.

Pretrial Release Conditions for Bail on Federal Charges

Some common conditions which may be imposed by a judge include:

Surrender of passports

Limitation of the ability to travel outside of the federal court’s jurisdiction

Surrender of any firearms

Abstinence from drug and alcohol use

Establishment of a curfew

Requirement to wear an ankle GPS monitor

Requirement not to associate with certain persons or institutions

Requirement to remain employed

Requirement to take part in a court-ordered mental health evaluation

Other specific restrictions applicable to the case

How to Appeal Unreasonable Conditions

If the judge orders conditions upon release which are unreasonable, the Eighth Amendment provides the legal basis for a defendant’s appeal. Procedurally, most detention orders are entered by the Magistrate Judge, which is the lowest-level judge in the federal courts. These orders are therefore appealable at the next level, before the District Judge. The decision of the District Judge is appealable to the Federal Circuit Court of Appeals. All orders are reviewed de novo, meaning the next highest level of appeal does not have to defer to any issues of fact or law found by the previous judge.

What is a Signature Bond in Federal Court?

A Pretrial Release Signature Bond is a promise to return for the next-scheduled court appearance without a need to put forward any money or financial collateral. The court will set a bail amount and the defendant, defendant’s family member or person they are staying with may be allowed to sign a document promising to pay the bail amount to the federal government if he or she fails to appear at subsequent court hearings as required. The Signature Bond, a common practice now in federal court, has replaced the traditional need to pay a bail bondsman fees for “bailing” someone out of jail.

What Happens after Pretrial Release?

After pretrial release, the defendant is no longer detained, subject to any conditions imposed by the court. The defendant awaits his or her next scheduled court appearance and must return to court for the next hearing or trial.

]]>https://kretzerfirm.com/can-you-bail-out-on-federal-charges-bail-federal-hold-and-detention-hearings/feed/014 Different Types of Legal Defenses in Criminal Lawhttps://kretzerfirm.com/common-legal-defenses-in-criminal-law-liability/
https://kretzerfirm.com/common-legal-defenses-in-criminal-law-liability/#respondTue, 12 Feb 2019 13:00:51 +0000https://kretzerfirm.com/?p=3321When you have been charged with a crime, one of the first questions you might ask is what types of defenses are available to you. This is where you will need the to know the legal defenses in criminal law, and where defense lawyer strategies that have been perfected with time and experience can help […]

]]>When you have been charged with a crime, one of the first questions you might ask is what types of defenses are available to you. This is where you will need the to know the legal defenses in criminal law, and where defense lawyer strategies that have been perfected with time and experience can help you.

There are many different types of criminal defenses. Your attorney can help you explore your rights and options, including which defense or defenses are available and applicable in your case.

What Is a Criminal Defense?

So just what is a criminal defense? A criminal defense is a strategic argument that attempts to challenge the validity and sufficiency of the prosecution’s evidence. The prosecution, often referred to as the state, the people, or the United States for federal crimes, is the party trying to prove the criminal charges against you. The prosecution must prove the crime beyond a reasonable doubt.

This breaks down as they must prove every element of the crime you have been charged with beyond a reasonable doubt. This is called the “burden of proof,” and it is a heavy one.

14 Common Defenses to Criminal Charges

There are many common defenses to criminal charges. A defendant may argue that there are holes in the prosecution’s case, that evidence was gathered in violation of the defendant’s constitutional rights, that another individual committed the crime, that the defendant had a justifiable reason for committing the crime, that the defendant lacked the intent to commit the crime, or that that defendant had a mental incapacity which caused him or her to commit the crime.

While some defenses are merely raised with the aim of showing that the prosecution has failed to make its case, other defenses are affirmative defenses, meaning they must be independently proven. So, what are the major criminal law defenses? We have provided a helpful list of the major criminal defenses below.

1. Innocence

One of the simplest defenses to criminal liability is the defense of innocence. This defense is raised when you did not commit the crime. Remember, the prosecution has to prove every element of the crime charged against you and prove it beyond a reasonable doubt.

To be innocent you do not have to prove anything. However, you have the option of offering testimony, documents, and other evidence in support of your innocence.

2. Constitutional Violations

These are types of criminal defenses used in criminal trials and involve the way evidence was collected by police and other law enforcement. Don’t miss these important defenses, because they could result in dismissal of the entire case.

Constitutional violations include illegal search and seizure of your home, car, clothing or person, failure to obtain a warrant for entry, obtaining an improper confession, or failure to read you your “Miranda Rights” at the time of arrest. Police often make mistakes in the way they do their job. These mistakes may require suppression of evidence against you, if not dismissal of the prosecution’s entire case.

3. Alibi

Certain types of defenses in criminal law, such as the alibi defense, are affirmative defenses. This means the defendant (you) must prove the defense, and in the case of an alibi, it means that the defendant must prove that he or she was somewhere other than the scene of the crime at the time of the crime.

Supportive evidence a defendant might offer includes testimony from someone he or she was with, surveillance footage, receipts from a restaurant, store, movie theater or sporting event, or phone records.

4. Insanity

The insanity defense, which you may hear about all the time in tv courtroom dramas, is used infrequently for a few reasons. The first is the insanity defense is another affirmative defense, which requires that the defendant prove, beyond a reasonable doubt, that he or she was suffering a severe mental disease or defect at the time the crime was committed.

The insanity defense means that either the defendant was unable to distinguish right from wrong when the crime was committed (the M’Naghten Rule), or the defendant had an “irresistible impulse” to commit a crime, meaning that the he or she knew what they were doing was wrong but was unable to stop doing it.

The second reason insanity is rarely raised is that the defense requires the defendant to admit that the crime was committed, and that they committed it. If the jury does not agree that the defendant was insane, they have admitted too many of the facts against them, and probably given the prosecution a very easy win. A third reason insanity defenses are used less than you might think is that a successful insanity defense generally results in institutionalization.

5. Self-Defense

The defense of self-defense may be raised for crimes like assault, battery, and murder, where the defendant used violence in a justified way to respond to violent actions or the threat of violent actions coming from the victim. The amount of force used by the defendant must be reasonable and proportionate (generally, the same or less) to the amount of force used by the victim.

For example, a defendant’s self-defense against a middle-aged man attacking him with a broken bottle in a bar fight will be treated very different than his self-defense against toddlers climbing on him in a daycare setting.

6. Defense-of-Others

Like self-defense, another defense involving justified use of force or violence is the defense-of-others defense. This may be used where the defendant used violence to protect someone else – a spouse, a child, another family member, or even a stranger. A person could invoke this defense if they used violence to stop someone who physically attacked another rider on a bus.

7. Defense-of-Property

Similar to self-defense and the defense-of-others, the defense-of-property defense may be raised where the defendant used force or violence to protect property, such as land or items, from damage or destruction. This defense has an additional limitation, in that the amount of force used to protect property can never be lethal.

8. Involuntary Intoxication

Involuntary intoxication is a lack of intent defense. If the defendant was in a state where he or she did not know what they were doing due to intoxication, this defense cancels out the intent aspect of most crimes.

Can being too drunk or too high really serve as a defense to committing a crime? The answer is maybe. If the person who was intoxicated did not become voluntarily intoxicated, such as if their drink was “spiked” or they ate something at a party did they did not realize was “laced” or drugged with a narcotic.

9. Voluntary Intoxication

Unlike involuntary intoxication, getting drunk or high deliberately and then committing a crime will not stand as a valid defense. However, certain crimes that have a specific intent requirement – meaning, the prosecution must prove beyond a reasonable doubt that the defendant intended to commit the act, and additionally, intended the specific consequences of his or her act to occur – may be subject to the voluntary intoxication defense.

10. Mistake of Law / Mistake of Fact

Sometimes, a defendant may have been unaware of a fundamental element of a crime that the prosecution has charged him with. For example, if a defendant is charged with stealing a car, but believed his family member or friend wanted to give him the car, a mistake defense would exist.

This defense is also a useful embezzlement defense or fraud defense. For example, with an embezzlement charge, if the defendant was in a position of authority or responsibility over someone else’s property, kept or used the property without the permission of its rightful owner, used the property to his or her benefit, and had the intent to permanently deprive the owner of the property, this would ordinarily constitute embezzlement. However, if the defendant thought he or she was given the authority to use the property by the person, such as believing he or she was supposed to make an investment with the victim’s money, they would have a valid mistake defense.

11. Duress or Coercion

This defense involves someone else threatening to use force or violence to get you to do something against your better judgment. Essentially, it means you were forced to commit a crime. Many Hollywood movies about organized crime families – The Godfather, Goodfellas, The Departed – all focus on the mafia using coercion to entangle people in their criminal activities, by threatening to harm them or their families. These types of situations provide a potential duress or coercion defense.

12. Abandonment / Withdrawal

This defense can be raised when a defendant initially intended to commit a crime or participate in a crime but had a change of heart and withdrew from participation. For most crimes, a defendant can establish that he or she successfully abandoned or withdrew from a crime by showing that he or she stopped participating in the crime prior to its ultimate commission, that any actions undertaken by the defendant prior to abandoning the crime did not contribute to its successful completion, or that the defendant notified the police of the planned crime as soon as possible.

13. Necessity

This is defense that applies where the defendant committed a crime to prevent a more significant harm from happening. For example, the defendant stole a car to drive a gunshot victim to the hospital or stole food to feed his starving family. The defense would not apply if the same defendant stole the car to take a vacation or stole laptops from an electronics store during a riot.

14. Statute of Limitations

This is a procedural defense. Sometimes, a certain crime will have a specific window of time in which it can be brought by the prosecution. If the window closes, the statute of limitations may bar the prosecution from bringing the case.

This an overview of the defenses which may be available in your criminal case. For an analysis of the particular facts and circumstances of your case and to choose the best defense or defenses available, an experienced Houston federal criminal attorney can help. Contact Seth Kretzer today to schedule a consultation.

]]>https://kretzerfirm.com/common-legal-defenses-in-criminal-law-liability/feed/0What Is Possession of a Dangerous Drug in Texas?https://kretzerfirm.com/what-is-possession-of-a-dangerous-drug-in-texas/
https://kretzerfirm.com/what-is-possession-of-a-dangerous-drug-in-texas/#respondTue, 05 Feb 2019 13:00:59 +0000https://kretzerfirm.com/?p=3309What Is Possession of a Dangerous Drug in Texas? In the State of Texas, the Penal Code defines possession of an illegal item as actual care, custody, control or management of that item. To prove a case, the State must prove beyond a reasonable doubt not only that the defendant had an illegal item, but […]

In the State of Texas, the Penal Code defines possession of an illegal item as actual care, custody, control or management of that item. To prove a case, the State must prove beyond a reasonable doubt not only that the defendant had an illegal item, but that that the defendant had the item willingly, knowingly, or otherwise on purpose.

Under the law, what is considered a dangerous drug is just about anything that is ordinarily prescribed by a medical professional, is not already listed as a controlled dangerous substance under the Texas Controlled Substances Act, and comes with a warning or label that says something like “caution; federal law prohibits dispensing without prescription” or “Rx only” or “for use by or on the order of a licensed veterinarian only.”

What Is Considered a Dangerous Drug in Texas?

The Texas Controlled Dangerous Substances Act, Health and Safety Code has five Penalty Groups of prohibited drugs, each with increasingly severe fines and penalties ranging from Penalty Group 5 (marijuana, the lowest) to Penalty Group 1 (cocaine, heroin, and oxycodone, the highest).

The Xanax penalty group in Texas is Penalty Group 3, providing an example of one of the many drugs which may be prescribed legally, but is still considered a Controlled Dangerous Substance with hefty penalties attached if used illegally, or distributed, or held with the intent to distribute.

So, what is considered a “dangerous drug” in Texas? Dangerous drugs are the drugs that don’t make the lists for the Penalty Groups. Though the name “dangerous drugs” might makes them sound like something that would be sold on street corners in rough neighborhoods, dangerous drugs are actually those more run-of-the-mill drugs that most people will take at some point in their lifetime: think antibiotics, anti-depressants, and sleeping pills.

A dangerous drug can be an anti-anxiety medication one dorm roommate tries to give to another during finals. A drug can be a dangerous drug if you are carrying it in your jacket pocket, in a bottle different than the one it came from at the pharmacy, without a prescription. And you can get in big trouble for throwing away that prescription.

What Happens If You Get Caught with a Dangerous Drug?

A lot of things could happen if you get caught with prescription drugs and no prescription, and the consequences can be a lot worse than you might think. Conviction for possession of dangerous drugs comes with an automatic 180 day suspension of your driver’s license.
Depending on the quantity of the dangerous drug in your possession, fines and jail time are also a possibility. Possession of a dangerous drug in Texas in an amount of 28 grams or less could result in a dangerous drug charge and conviction of a Class A Misdemeanor, with a fine of up to $4,000, and one year in county jail.

If you are caught with more than 28 grams of a dangerous drug, the crime is a felony. The fine could be much higher, and you could go away for a lot longer. A dangerous drug can impact your life in many negative ways, requiring mandatory participation in a drug education program, interfering with your chances for future employment and housing opportunities.

How to Defend against a Dangerous Drug Charge in Texas

There are many ways that an expert drug possession defense lawyer in Houston, Texas can defend you if you face a dangerous drug charge. Defenses may be constitutional defenses or factual ones in your circumstances.

In either case, a skilled attorney may be able to use the available defenses to negotiate for dismissal of your drug charge with no more of a penalty than taking classes or performing community service. Constitutional defenses may result in a dismissal of the State’s case if the dangerous drugs were found by police due to an unlawful search of your home, vehicle, or physical person. Police need a warrant or probable cause to conduct a search, and if they don’t have a warrant or can’t prove probable cause, the results of the search are barred from being used as evidence against you in court under the Fourth Amendment.

Other defenses are based on the particular facts of your matter. A major defense for dangerous drug possession is that the possessor did not know that they had possession of the drug or that the drug was illegal. Having a valid prescription is another defense. Having another authorized purpose for possessing a dangerous drug is another defense, which could include possessing the drug as a law enforcement officer, warehouse worker or carrier, wholesaler, midwife caring for a pregnant woman who needs a certain drug, or medical researcher who is in possession of a certain drug for a legitimate purpose other than personal use or resale.

]]>https://kretzerfirm.com/what-is-possession-of-a-dangerous-drug-in-texas/feed/0What to Do When Someone Is Arrested – Helping a Loved Onehttps://kretzerfirm.com/what-to-do-when-someone-is-arrested-how-to-find/
https://kretzerfirm.com/what-to-do-when-someone-is-arrested-how-to-find/#respondTue, 22 Jan 2019 13:00:46 +0000https://kretzerfirm.com/?p=3299When someone you love is arrested it can be a stressful time, especially if you don’t know what to expect. If you’ve received a call from them, you may have limited information to work with. If you forget to ask something or don’t get all the information you need, what can you do? You may […]

]]>When someone you love is arrested it can be a stressful time, especially if you don’t know what to expect. If you’ve received a call from them, you may have limited information to work with. If you forget to ask something or don’t get all the information you need, what can you do? You may not know where to start.

People get arrested every day, and you’re not alone in worrying about your loved one. Someone getting arrested can be hard a hard thing to deal with especially when you care about them. Follow the steps in this article to navigate this stressful time.

How Do I Find Out if Someone Has Been Arrested?

How do I find someone who got arrested? It has become much easier to find someone who has been arrested due to technology. When an officer arrests an individual, they must fill out an arrest report. Most cities and states have patrol cars with computers in them, so the information is easily transmitted to the police station.

Once the officer transports the person to their home police station, they will be booked into the jail. This process includes taking their information (such as name and address), recording the initial charges, fingerprinting, and having their mug shot taken. Once this is finished, the information is logged into the jail’s database.

As soon as the information is in the database, friends and family members can visit the local government website. Some government websites have an ‘Arrests and Bail’ menu which will also provide the information for which you’re searching. Search by name and address to find out where your loved one is being held.

What to Do When Someone Gets Arrested

After being arrested, your loved one will get one phone call. When they call you, it’s important they do not say anything incriminating. Phone calls can be monitored and recorded, and this information can be used against them. You can ask where they are being held and what the charges are but avoid asking anything beyond that. Let them know you are taking care of things on the outside so you can get them out of jail as soon as possible.

1. Talk to the District Attorney’s Office

The DA’s office will be able to tell you the time and date of your loved one’s arraignment and any other significant details about the case.

What happens when someone is arrested while driving? If your loved one was pulled over and arrested, you’ll want to find out if their car was impounded and what a third party must do to get it released.

2. The Arraignment

Once the person has been arrested, they will appear before a judge within 24 to 48 hours. They will be able to plead guilty, not guilty, or no contest. At that time, the judge will set bail, provided the courts don’t feel the person is a flight risk. The amount of bail depends on the charges. The more serious the crime, the higher bail that is typically set.

At that time, you can pay the bail in full to get your loved one released until their court date. When they show up for court, you get your money back. If you don’t have the funds, you will want to contact a bail bondsman.

3. The Bondsman

A bail bondsman is a person who will post bail for your loved one if you can’t afford to do so yourself. In most cases, they require 10% of the bond, along with paperwork to be filled out with your information. For example, if bail is set at $500 you will have to give them $50. This money is part of their fee, so you won’t get it back.

4. Hire an Experienced Lawyer

What happens after someone is arrested will be determined at the court proceedings. Hiring a trusted criminal defense lawyer can help improve the odds that your loved one builds the best possible case. An experienced criminal defense lawyer understands the laws, your rights, and can fight on your behalf.